A review has recommended overhauling Australia’s strongest secrecy law, parts of which have been described as “unnecessary and oppressive”.
Key points:
- Major changes have been recommended to be made to Australia’s National Security Information Act
- The Independent National Security Legislation Monitor Grant Donaldson described parts of the act as “overreach”
- Attorney-General Mark Dreyfus said the federal government will now consider the report’s recommendations
The Independent National Security Legislation Monitor, Grant Donaldson, was tasked with examining the entire National Security Information Act, after it was used in several high-profile cases, including the prosecutions of Witness J, Witness K and Canberra lawyer Bernard Collaery.
Mr Donaldson said the act “does important work” but argued it comes “at too great a cost”.
He made 40 recommendations to “demystify” the use of the act, particularly around enhancing open justice through repealing provisions that require certain matters to be held in closed court hearings.
“It is critical that the public be capable of following and understanding the conduct of trials, particularly high-profile trials,” he said.
“It is critical that the public can scrutinise decisions of Attorneys-General seeking to impose secrecy and understand the reasons of courts for ordering or rejecting secrecy that executive government seeks.
“The act deals with important issues, and their understanding should not be overwhelmed by suspicion about the work of courts and intelligence agencies that unnecessary and oppressive secrecy creates.”
Mr Donaldson said he wanted to maintain the important work the law does, but also reduce its “undesirable impact on the administration of justice”.
Key recommendations to reform ‘overreach’
Several recommendations were made to reform the secrecy offences in the act, some of which Mr Donaldson described as “dramatically” overreaching.
He also called for new requirements to be placed on Attorneys-General to regularly review secret material, to decide if it needed to remain secret.
Among the recommendations was also a call to ensure the rights of defendants were not overridden by national security concerns, including protecting communications between defendants and their lawyers.
“I recommend change to ensure that defendants are not required to disclose matters to the prosecution, if they would not otherwise be required to do so,” he said.
As part of the review, Mr Donaldson considered submissions from several organisations, top spies, and politicians.
But he rejected a submission from the National Intelligence Community to create a dedicated national security court to deal with matters involving the act.
“Principally, I reject this suggestion because the creation of what would be, in effect, a national security court would inevitably over time give rise to perceptions of capture of judges by executive government,” he said.
Witness J proceeding a ‘shameful tale’
One of the cases in which the Act was used was that of Witness J – or Alan Johns* – an intelligence officer who pleaded guilty to breaches related to classified information.
His case was unprecedented, with the charges, hearing and sentencing kept completely secret under section 22 of the Act.
It was so secret, in fact, his own mother was not allowed to know where he was, with the case only coming to light when he unsuccessfully tried to sue Canberra’s jail.
In his report, Mr Donaldson was scathing about how the case played out.
“The secrecy of the Alan Johns* proceeding is a shameful tale,” he wrote.
He said the court and the Attorney-General – who at the time was Christian Porter – failed to explain and publish why the prosecution remained secret throughout the various stages.
“Information that could and should have been publicly disclosed about the prosecution was not,” Mr Donaldson wrote.
In a 2022 report, which prompted the review of the entire act, Mr Donaldson warned cases shrouded in such secrecy should never happen again.
In the latest report, Mr Donaldson also said it was “staggering” that it took 10 months for the sentencing remarks of the judge to be made public.
In a statement to the ABC, Federal Attorney-General Mark Dreyfus, who ordered the review, said the federal government was committed to ensuring appropriate laws were in place to protect national security information, while upholding the principles of open justice.
“The Government welcomes the report and will now consider its 40 recommendations alongside the recommendations from the INSLM’s review of the Alan Johns matter.”
*A pseudonym used for Witness J.